BLAKE HACKING v. DERRICK HIMMELBERGER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2451-03T32451-03T3

BLAKE HACKING,

Plaintiff-Appellant,

v.

DERRICK HIMMELBERGER, STEVEN P.

MACHALICA, JOHN DOE (1-10) and

JOHN DOE ENTITY (1-10), jointly,

severally and/or in the

alternative,

Defendants-Respondents.

___________________________________________________

 

Argued October 19, 2005 - Decided

Before Judges Stern and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Camden County,

Docket No. L-4896-02.

Jordan R. Irwin argued the cause for appellant

(Begelman & Orlow, attorneys; Ross Begelman,

of counsel and on the brief).

Diana R. Brocco argued the cause for respondent

Derrick Himmelberger (Kent & McBride, attorneys;

Jeffrey R. Owens, of counsel and on the brief).

Charles F. Blumenstein argued the cause for respondent

Steven P. Machalica (Green, Lundgren & Ryan, attorneys; Mr. Blumenstein, on the brief).

PER CURIAM

Plaintiff, Blake Hacking, appeals from a consent judgment of December 10, 2003, dismissing his claims for economic damages, "without prejudice," thus converting prior orders of October 10, 2003, dismissing "with prejudice" the claims for non-economic damages for failure to satisfy the verbal threshold, into a final judgment. The grant of summary judgment on the non-economic issues presents the subject of the appeal. The accident occurred on July 22, 2000, and plaintiff argues that he "has demonstrated that he has sustained a permanent injury" and "significant impact . . . on his life," so as to preclude summary judgment, and that "the trial court erred in applying the requirements set forth in Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), such that the grant of summary judgment must be reversed. Plaintiff was involved in a second accident on December 13, 2000.

As the serious impact decision is in the "pipeline," the decision on the second prong must be reversed. See DiProspero v. Penn, 183 N.J. 477 (2005); Serrano v. Serrano, 183 N.J. 508 (2005); Beltran v. Delia, 379 N.J. Super. 169 (App. Div. 2005).

In rendering his opinion, the motion judge stated:

This is a relatively minor impact that resulted in three months of treatment. Plaintiff's last visit to the doctor for this accident was November the 20th, 2000.

Plaintiff then has a second accident

. . . shortly thereafter.

The objective evidence, such as it is, is questionable. It's interpreted both ways. The injury is basically a soft tissue injury. Whether it be a bulge or herniation, there's no proof of impingement, no showing of impingement on the thecal sac.

The second accident, as I said, occurred with apparently substantial or serious injuries. There is no Polk analysis that could guide the Court or a jury in determining which injuries came from which accident, whether or not the injuries suffered in the first accident were aggravated by the second accident, whether or not the plaintiff continues to suffer injuries from the first accident, independent of the effects of the second accident.

None of that is before the Court. And I think that there is a clear requirement that that be done.

But primarily, we have, in spite of the affidavit, clearly no substantial impact on this plaintiff's life. He may have had a passion for hockey and he may be playing with pain, but pain, alone, is not enough. And the pain certainly could not be that substantial that it prevented him from paying hockey, and not only playing hockey, but playing it on a regular basis. He played in a league and so forth and continued to play at least up until he became injured playing hockey.

So the accident did not prevent him from doing that which was his passion, namely, playing hockey. And in that respect, it did not have a substantial impact on his life.

Motions will be granted.

It is clear that the judge dismissed the case for failure to satisfy the formerly recognized "substantial impact," or second prong, of the summary judgment model discussed in James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2002), and Rios v. Szivos, 354 N.J. Super. 578 (App. Div. 2002). It is not clear if the judge definitively ruled on the "objective medical evidence," or the "first prong."

As already noted, this suit follows an accident of July 22, 2000. In his evaluation of July 24, 2000, Dr. Ronald Zweibaum, a chiropractor, found nerve root compression but noted that x-rays reported no apparent fractures or gross osseous pathology. Like Dr. Zweibaum, another chiropractor, Dr. Neil K. Liebman found continuing spasms and tenderness during an examination on October 13, 2000. Dr. Liebman referred plaintiff to Dr. Stuart Dubowitch for an orthopedic consultation. In his report of November 20, 2000, which was prepared before plaintiff's accident of December 13, 2000, Dr. Dubowitch wrote:

IMAGING STUDIES

[Mr. Hacking] presents with an MRI study of the lumbar spine. The MRI study was ordered by Dr. Zweibaum. It was done at the open MRI of Cherry Hill. It is dated September 27, 2000, and I personally reviewed the MRI. On my review, there is a herniation at the L5-S1 level, and there appears to be a herniation at L4-L5 level as well. Degenerative disc signal was noted at the L4-L5 level.

Dr. Liebman also executed a certification of permanency.

We remand for reconsideration of the motion for summary judgment. On the remand the parties should focus on whether the herniated disc, based on the objective medical evidence presented in this case, constituted a "permanent injury" within the meaning of N.J.S.A. 39:6A-8a. See, e.g., Martin v Chhabra, 374 N.J. Super. 387, 393 (App. Div. 2005); Moreno v. Greenfield, 272 N.J. Super. 456, 463-64 (App. Div. 1994). However, we conclude that no Polk analysis is required when the cause of action relates to a "permanent injury" which occurs before the time of the second accident and objective medical evidence is developed as to "permanency" before the second event. See Polk, supra, 268 N.J. Super. at 568; see also Davidson v. Slater, __ N.J. Super. __, __ (Oct. 20, 2005) (noting significance of chronology in Polk); Sherry v. Buonansonti, 287 N.J. Super. 518, 522 (App. Div.), certif. denied, 144 N.J. 588 (1996). If plaintiff suffers from a permanent injury, he must prove at trial the extent to which his injuries are attributable to the accident in question.

In essence, this case includes issues which require more thorough consideration by the motion judge in light of the case law as it has evolved since DiProspero was decided. See DiProspero, supra, 183 N.J. at 477.

Accordingly, the orders under review are reversed, and the matter is remanded for further proceedings consistent with this opinion.

 

The December 10 order provides:

The parties to this matter having informally conferred in an effort at conciliation;

And the parties thereafter having voluntarily agreed that plaintiff's claim for economic damages shall be withdrawn without prejudice only to the extent that the plaintiff is successful on appeal and having further agreed that the above captioned matter should therefore be DISMISSED in accordance with the terms set forth herein and for good cause shown;

IT IS on this 10th day of DEC. 2003, ORDERED that:

1. Plaintiff's claim for economic damages shall be dismissed without prejudice to the extent that the plaintiff is successful on appeal.

2. It is further ordered that this court's Order granting summary judg[]ment for non-economic damages, in the above captioned matter is hereby deemed a Final Order as of the date of the signing of this order.

At argument before us, we confirmed that the order must be interpreted to permit the re-opening of the claim for economic damages only in the case of reversal on this appeal, and the matter is to be tried on non-economic damages. Otherwise, there would be a serious question of finality precluding review at this time. See Ruscki v. City of Bayonne, 356 N.J. Super. 166, 168-69 (App. Div. 2002).

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A-2451-03T3

November 1, 2005